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with Tim Dees

Nonconsensual blood draws ruled unconstitutional

What impact will Missouri v. McNeely have on DUI enforcement?

On April 17, 2013, the U.S. Supreme Court handed down its decision in Missouri v. McNeely, ruling that obtaining involuntary specimens for blood alcohol testing without a search warrant is an unreasonable seizure in violation of the Fourth Amendment.

This case has substantial impact on the procedure many police officers follow in investigating drunk driving cases.

The case began in October 2010, when Missouri State Highway Patrol Trooper Mark Winder stopped Tyler McNeely for speeding in Cape Girardeau County. Trooper Winder noticed that McNeely displayed symptoms of alcohol intoxication, asked McNeely to step out of his truck, and administered a series of standard field sobriety tests. McNeely performed the tests poorly, and Trooper Winder placed him under arrest for driving while intoxicated.

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After handcuffing McNeely and placing him in his patrol car, Trooper Winder asked McNeely to submit to a breath test.

McNeely refused.

During the 17 years that Trooper Winder had been in law enforcement, he had many times obtained search warrants to secure blood specimens for testing when DUI suspects refused to provide a breath or blood test willingly.

However, shortly before this arrest, Trooper Winder had read an article in Traffic Safety News titled ,”Warrantless Blood Draws: Are They Now Authorized in Missouri?”

The article was written by a traffic safety resource prosecutor, and indicated that search warrants were no longer necessary in these cases, because Missouri had modified its implied consent law.

The old law specified that when a person refused both a breath analyzer and a blood test, then “none shall be given.” In 2010, that section was amended to remove the phrase “none shall be given,” and the author of the article opined that this enabled Missouri law enforcement officers to obtain forcible blood specimens when DUI suspects refused to provide them voluntarily.

Acting on this information, Trooper Winder drove McNeely to a hospital and directed a staff phlebotomist to draw his blood over McNeely’s objections. When tested, McNeely’s blood alcohol content was well over the 0.08% statutory limit.

At trial, McNeely sought to suppress the blood test results as an unreasonable seizure under the Fourth Amendment. The trial court granted McNeely’s motion, and the state appealed to the Missouri Supreme Court. That court affirmed the ruling of the trial court, as did the U.S. Supreme Court most recently.

Cops have been obtaining compelled blood alcohol specimens since at least the 1980s, when activist organizations like MADD raised awareness of the impact of drunk drivers.

Most states elevated driving while intoxicated from an expensive traffic ticket to a criminal offense with mandatory jail time. They allowed or required prosecution of repeat offenders as a felony, and many have warrantless nonconsensual blood draws written into their statutes when a suspect refuses a blood or breath test.

Some require special circumstances, such as prior convictions for DUI or involvement in an injury accident. Some jurisdictions in Texas have “no refusal weekends” when everyone arrested for drunk driving provides a blood or breath sample whether they want to or not.

Missouri’s amended statute only implied that officers could obtain blood specimens without a search warrant or consent, where laws in other states explicitly allow it. Nevada Revised Statutes 484C.160-7b states:

If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was [driving under the influence], the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.

Quite a number of drunk drivers I arrested told me I couldn’t do that. They are all believers now.

The McNeely decision may, and probably does, make all of those compulsory blood draw statutes unconstitutional. Drunk drivers and their lawyers across the country are likely very happy with this development. Law enforcement agencies and prosecutors’ offices are going to have to move fast to change their procedures.

Most states provide for telephonic or electronic applications for search warrants, and this process will have to be streamlined for DUI cases. The blood specimens have to be obtained quickly, as the evidence dissipates with the metabolization of alcohol in the body.

Some states and counties will have to establish a system of on-call magistrates, as the typical judge is not going to like being called out of bed several times every night.

This ruling potentially impacts every drunk driving arrest after April 17, 2013. If your agency has not developed new procedures and training to comply with the new ruling, it’s imperative you do it quickly.

About the author

Tim Dees is a writer, editor, trainer, and former law enforcement officer. After 15 years as a police officer with the Reno Police Department and elsewhere in Northern Nevada, Tim taught criminal justice as a full-time professor and instructor at colleges in Wisconsin, West Virginia, Georgia, and Oregon.

He was also a regional training coordinator for the Oregon Dept. of Public Safety Standards & Training, providing in-service training to 65 criminal justice agencies in central and eastern Oregon.

Tim has written more than 300 articles for nearly every national law enforcement publication in the United States, and is the author of The Truth About Cops, published by Hyperink Press. In 2005, Tim became the first editor-in-chief for Officer.com, moving to the same position for LawOfficer.com at the beginning of 2008. He now writes on applications of technology in law enforcement from his home in SE Washington state.

Tim holds a bachelor’s degree in biological science from San José State University, a master’s degree in criminal justice from The University of Alabama, and the Certified Protection Professional credential from ASIS International. He serves on the executive board of the Public Safety Writers Association.